MEMORANDUM OF CONSIDERATION

	IN THE CASE OF:      

	BOARD DATE:           27 JUNE 2002                  
	DOCKET NUMBER:   AR2002070804

	I certify that hereinafter is recorded the record of consideration of the Army Board for Correction of Military Records in the case of the above-named individual.  

	Mr. Carl W. S. Chun		Director	
	Ms. Irene N. Wheelwright		Senior Analyst	

  The following members, a quorum, were present:

	Ms. Irene N. Wheelwright		Chairperson	
	Ms. Kathleen A. Newman		Member	
	Mr. Richard T. Dunbar		Member	

	The Board, established pursuant to authority contained in 10 U.S.C. 1552, convened at the call of the Chairperson on the above date.  In accordance with Army Regulation 15-185, the application and the available military records pertinent to the corrective action requested were reviewed to determine whether the application was filed within the time established by statute, and if not, whether it would be in the interest of justice to waive the failure to timely file.

	The applicant requests correction of military records as stated in the application to the Board and as restated herein.

The Board considered the following evidence:

	Exhibit A - Application for correction of military 
                records
	Exhibit B - Military Personnel Records (including
	            advisory opinion, if any)

APPLICANT REQUESTS:  In effect, that his reentry code of “3” on his                DD Form 214 be corrected so that he can enlist in the Reserves.  

He states that he received a “European out” in 1996.  He did not have enough time [remaining] on active duty for a permanent change of station assignment to the United States; therefore, he chose to remain in Europe, ending his service in Germany.  Although he received an honorable discharge, a reentry code of “3” was entered on his DD Form 214.   

PURPOSE:  To determine whether the application was submitted within the time limit established by law, and if not, whether it is in the interest of justice to excuse the failure to timely file.

EVIDENCE OF RECORD:  The applicant's military records show:

The applicant enlisted in the Army for four years on 12 March 1986 and remained on continuous active duty until his discharge in 1996, attaining the rank of Staff Sergeant.

On 9 February 1996 the applicant requested separation from the Army under the provisions of Army Regulation 635-200, paragraph 16-5, with a discharge date of 6 May 1996.  Attached to that request was a DA Form 4991-R (Declination of Continued Service Statement).

The applicant’s request was approved by the separation authority who stated that he would be separated under the provisions of Army Regulation 635-200, paragraph 16-5c, due to his signing a Declination of Continued Service Statement (DCCS).

The applicant was discharged in Heidelberg, Germany on 6 May 1996.  He had 10 years, 1 month, and 25 days of service.  His DD Form 214 shows a separation (SPD) code of “KGH” and a reentry code of “3.”

Army Regulation 635-200 provides for the separation of enlisted soldiers.  Paragraph 16-5c states that soldiers who decline to meet service remaining requirements and who have signed a DCCS may request immediate separation.  The soldier’s request will be submitted on a DA Form 4187.  

Pertinent Army regulations provide that prior to discharge or release from active duty, individuals will be assigned reentry (RE) codes, based on their service records or the reason for discharge.  Army Regulation 601-210 covers eligibility criteria, policies, and procedures for enlistment and processing into the Regular Army (RA) and the US Army Reserve.  Chapter 3 of that regulation prescribes basic eligibility for prior service applicants for enlistment.  That chapter includes a list of armed forces RE codes, including RA RE codes.  RE-3 applies to persons not qualified for continued Army service, but the disqualification is waivable.

That regulation also states in pertinent part that prior service personnel will be advised that RE codes may be changed only if they are determined to be administratively incorrect.  Applicants who have correct RE codes will be processed for a waiver at their request if otherwise qualified and waiver is authorized.  Recruiting personnel are authorized to process requests for waiver. 

A separation program designator code (SPD)/Reentry (RE) code cross reference table shows that a soldier discharged with a separation code of “KGH” will have either a RE code of “3” or “4” entered on his DD Form 214.  However, that table indicates that a RE code of “3” will be entered when the soldier’s record indicates that he has a DCCS.

Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  Failure to file within 3 years may be excused by a correction board if it finds it would be in the interest of justice to do so.

There is no evidence, nor has the applicant provided any, to indicate that his reentry code was in error or unjust and as such there is no basis to grant his request to correct this code.

DISCUSSION:  The alleged error or injustice was, or with reasonable diligence should have been discovered on 6 May 1996, the date of his discharge.  The time for the applicant to file a request for correction of any error or injustice expired on 6 May 1999.

The application is dated 12 March 2002 and the applicant has not explained or otherwise satisfactorily demonstrated by competent evidence that it would be in the interest of justice to excuse the failure to apply within the time allotted.

DETERMINATION:  The subject application was not submitted within the time required.  The applicant has not presented and the records do not contain sufficient justification to conclude that it would be in the interest of justice to grant the relief requested or to excuse the failure to file within the time prescribed by law.  Prior to reaching this determination the Board looked at the applicant’s entire file.  It was only after all aspects of his case had been considered and it 

had been concluded that there was no basis to recommend a correction of his record that the Board considered the statute of limitations.  Had the Board determined that an error or injustice existed it would have recommended relief in spite of the applicant’s failure to submit his application within the three-year time limit.

BOARD VOTE:

________  ________  ________  EXCUSE FAILURE TO TIMELY FILE

________  ________  ________  GRANT FORMAL HEARING

__INW __  __KAN __  __RTD __  CONCUR WITH DETERMINATION

    Carl W. S. Chun
    Director, Army Board for Correction
	                of Military Records

INDEX

CASE ID	AR2002070804	
SUFFIX		
RECON	YYYYMMDD	
DATE BOARDED	20020627	
TYPE OF DISCHARGE	(HD, GD, UOTHC, UD, BCD, DD, UNCHAR)	
DATE OF DISCHARGE	YYYYMMDD	
DISCHARGE AUTHORITY	AR . . . . .  	
DISCHARGE REASON		
BOARD DECISION	DENY	
REVIEW AUTHORITY		
ISSUES         1.	110.00	
2.	4	
3.		
4.		
5.		
6.